Illegal immigration: What are the risks for those who remain in Italy without a residence permit?

Illegal immigration: What are the risks for those who remain in Italy without a residence permit?

The crime of illegal immigration

The crime of illegal immigration was introduced into the Italian legal system with law no. 94 of 2009 which inserted within the Italian Law of Immigration (Legislative Decree 286/1998) art. 10 bis titled “Illegal entry and stay in the territory of the State”, this is a new offense that punishes with a fine from 5,000 to 10,000 euros “the foreigner who enters or stays in the territory of the State” in violation of the provisions of the Italian Immigration Law, as well as those referred to in art. 1 Law n. 68/2007, relating to short stays for visits, business, tourism and study in Italy. 

The reason for the existence of the crime of illegal immigration is twofold: to create a legal instrument that makes the expulsion measures more incisive and effective and to introduce a psychological deterrent against individuals who intend to enter or remain clandestine in Italy.

The constitutive elements 

The law typifies two conducts that can be subsumed in the crime of illegal immigration: 

  • illegal immigration consisting in the illegal entry of the foreigner (so-called “crossborder”) into the Italian territory, in violation of the provisions in force on the subject of the Italian immigration Law and of the law May 28, 2007, n. 68; 
  • illegal immigration, on the other hand, which takes the form of the illegal stay of the foreigner (so-called “overstayer”) in Italy who, despite having legally entered Italy, remains there in the absence of a valid title, when he is no longer legitimized. 

A clarification should be made: the Italian Supreme Court has clarified that in the matter of illegal immigration, the crime provided for by art. 10 bis of Legislative Decree no. 286 of 1998 it is not configured  when the entry into the territory of the State took place as part of a rescue activity (Supreme Court SS.UU. sent. No. 40517/16).

Who can commit the crime of illegal immigration? 

As for the active subject of the crime, Illegal immigration lawyer Italy is keen to specify that the crime of illegal immigration can only be committed by the foreigner.

The legal asset protected by the law

The asset protected by the law is the public security, which is compromised by the entry of people who, as they do not meet the admissibility requirements in the State, are potentially dangerous.

On the constitutional legitimacy of the new indictment, numerous perplexities immediately emerged with respect to the offensiveness, given the absolute impossibility of finding in the case described a conduct suitable to damage or endanger legal assets worthy of protection.

The Constitutional Court, invested with the question, observed that the law of illegal immigration is not in contrast with the principle of offensiveness, given that the same does not punish mere disobedience or even the mere status of illegal immigration, but rather conducts that arise in contrast with the public interest in the control and management of migratory flows, an interest certainly not arbitrary, but worthy of consideration. 

Indeed, the Constitutional Court observes that the orderly management of migratory flows represents an instrumental asset for the protection of final goods, such as security, public health, public order (Constitutional Court, ruling 08/07/2010, no. 250)

The subjective element

Despite being recognized by the law as a contravention, the subjective element is the generic intent: the law, in fact, does not want to punish the illegal foreigner as such, but the one who has voluntarily and knowingly violated the legislation governing regular entry into the State.

When does the criminal conduct take place? 

To trace the consuming moment of the crime of illegal immigration, it is necessary to distinguish between the two cases outlined in art. 10-bis: 

  • that of illegal entry has an instantaneous nature and is consumed when the foreigner crosses the national border; 
  • that of illegal stay, on the other hand, is of a permanent type and takes place at the time and place in which the anti-legal conduct ceases. 

In any case, for the crime of illegal immigration the attempt is inadmissible for Italian Law, since it is a contravention.

The provided sanctions

As regards the sanctioning regime, illegal immigration pursuant to art. 10-bis of the Italian Immigration Law constitutes an offense, falling within the jurisdiction of the justice of the peace, punished with the sole monetary penalty of a fine.

The rule in question excludes the possibility of applying to the crime of illegal immigration the art. 162 c.p. and therefore it does not allow the convicted person to benefit from that particular cause for extinguishing the crime known as “oblation” that the criminal system provides for all other cases of contravention.

However, the main problem concerning the sanctioning regime for the crime of illegal immigration concerns its absolute ineffectiveness.

In fact, punishing with a financial penalty an illegal foreigner who – precisely because he does not have a residence permit – cannot open a current account, cannot be regularly hired, cannot be registered real estate or movable property, renders the law on illegal immigration deprived of real effects. 

Starting from this consideration, the real sanction of this crime would not be the fine, but the sanction in lieu of expulsion provided for by art. 16, co. 1 of the Italian immigration Law.

Precisely from the point of view of sanctions there is an interference between criminal and administrative proceedings against the irregular migrant.

In fact, when the foreigner is caught in a condition of “clandestinity”, parallel to the complaint for the crime of illegal immigration, he must be compulsorily expelled administratively by the Prefect. 

Therefore, from the moment the irregularity is ascertained, two parallel proceedings are set up against him, both aimed at removing him from the national territory: the criminal and the administrative one. 

It happens that, if pending the criminal trial the Administration enforces the expulsion forcibly, the judge, pursuant to art. 10-bis, co. 5 of the Italian imigration Law, pronounces a judgment of not having to proceed.

Otherwise, the criminal trial continues and, where a conviction is reached, a fine will be imposed, which can be replaced with expulsion.

Favoring and exploitation of clandestine immigration

Those who favor or exploit illegal immigration, on the other hand, can suffer other and more serious sanctions. 

The law on illegal immigration opens with the reserve clause “unless the fact constitutes a more serious crime (…)”. 

In addition to the illegal immigration conduct sanctioned by art. 10 of the Italian immigration Law, foreigners may find themselves in even more serious situations as they have already been affected by a removal or expulsion order.

  • Aiding and explotation of illegal immigration (Article 12 of Legislative Decree No. 268/1998): the provision in question punishes anyone who promotes, directs, organizes, finances or carries out the transport of foreigners in the territory of the State and also the conduct of real aiding and explotation of illegal immigration.

Therefore, there are two offending conducts: the activity of transporting foreigners within the Italian territory and the activity aimed in any case at procuring illegal entry into Italy or into another State of which the person is not a citizen or is not entitled of permanent residence. 

In order for the crime to be committed, it is not necessary to enter the territory of Italy or another State, as the suitability of the conduct is sufficient to achieve a similar result (Supreme Court, Section I, 13/01/2009, no. 1082).

  • Aiding and abetting illegal stay (art.12 co. 5 d.lgs. 286/1998): the law punishes all conducts aimed at favoring the foreigner’s stay contra ius in Italy, while those aimed at favoring entry fall within the range of the operation of the crime of aiding and abetting and exploitation of illegal immigration.
  • Provision of housing and housing contracts contra legem (Article 12 co. 5-bis of Legislative Decree 286/1998): this provision punishes those who grant, not only in lease, but on the basis of any contract, the availability of a property to foreign subjects without a residence permit. The nomen iuris of the stipulated contract is therefore not relevant, but what matters is the effect and the onerous nature of the agreement.

Why contact our law firm?

The Illegal immigration Lawyer Italy, thanks to the experience of the firm’s professionals lawyers, specialized in issues relating to illegal immigration crimes, provides legal advice and assistance of the highest level. 

On the subject of immigration law you can also read our other articles and in particular:

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